New York Enacts a Rule to Restrict the Use of Steroids in Horseracing: The First Step On a Long Journey

Benjamin L. Loefke, Staff Writer

The New York State Racing and Wagering Board, the governmental body responsible for “regulation and oversight of legalized gambling . . . govern[ing] Thoroughbred Racing, Harness Racing, Quarter Horse Racing, [and] Off-Track Betting . . . ,” recently promulgated Rule 4043.15, the “steroid rule.”1 The rule became effective on January 1, 2009 and has already had positive effects on the dying horse racing industry that has taken recent blows from the horrible tragedies of Eight Belles and Barbaro.  The deaths of these horses linger in recent memory even for those with little or no interest in horse racing.2

The state’s passage of the steroid rule has given the industry hope as far as the integrity of the sport and preservation of the animal athletes. Unfortunately, the rule might not be enough to save what has become a nearly obsolete sport, because the public’s general feelings of illegitimacy towards it and the advent of other forms of legalized gambling have diverted revenue that was once spent at betting windows on the daily double instead of on lottery tickets and at quick draw terminals.

Rule 4043.15 does not constitute an outright ban on all steroid usage, but it certainly does limit the number of different steroids that a horse may be treated with at anyone time.  The relevant part of the Rule states:

(a) The use of one of four approved anabolic steroids shall be permitted under the following conditions:

(1) Not to exceed the following permitted urine or plasma threshold concentrations:

(i) 16β-hydroxystanozolol (metabolite of stanozolol (Winstrol)) – 1 ng/ml in urine

(ii) Boldenone (Equipoise) In male horses other than geldings, including free boldenone and boldenone liberated from its conjugates – 15 ng/ml in urine

(iii) Nandrolone – 1 ng/ml in urine

(iv) Testosterone3

Steroids are blamed for some of the problems in horseracing because doping can give an unfair advantage and can be detrimental to the animal by forcing it to carry muscle mass that it gains unnaturally. 4 Breakdowns and race-track deaths of horses are attributed to the use of doping agents, steroids included.  New York, a state that had slightly more stringent penalties for doping than some others has shown a slight statistical advantage over states with less stringent penalties like Kentucky.  A fairly recent article by Joe Drape indicated that in New York in the last five years 388 of 521,703 (.07 percent) horses suffered on track or racing related deaths, whereas in Kentucky there were 208 deaths out of 114,668 (.181 percent) horses that raced in the same time period.5

States across the country have begun to adopt new rules regarding performance enhancing drugs, especially anabolic steroids.  The increase in safety regulations is most certainly a direct result of the Congressional Subcommittee on Commerce, Trade, and Consumer Protection hearing held this past summer regarding “Breeding, Drugs, and Breakdowns: The State of Thoroughbred Horseracing and the Welfare of the Thoroughbred.”  At the hearing, leading trainers, breeders, veterinarians, and owners were asked to give testimony on the ultimate issue of whether or not the federal government should force regulations on the states to ban steroids and other performance enhancing drugs as well as regulate breeding techniques that may also be a significant factor in the increasing fragility of the racing horse.6

The general findings of the hearing were that horse racing has significant problems with drugs and breeding, evidenced by tragedies like the euthanization of Eight Belles on live television, and that the majority of interested parties advocated for federal government involvement.  One person in opposition to federal intrusion however, was Alexander Waldrop, the President and Chief Executive Officer of the National Thoroughbred Racing Association (NTRA).7 Waldrop urged the feds to give the industry time to self regulate.8 He testified that although the NTRA, a body without any enforcement power, could not force the states to take any particular action, its “Safety and Integrity Alliance” was successfully garnering the attention of the states, and as many as thirty-two of thirty-eight racing jurisdictions nationally had adopted the model rules of the Alliance plan.9

Unlike the NTRA, the federal government could compel the states to adopt certain rules for the improvement of safety and integrity of horse racing.  The statute enabling such federal control over horseracing is the Interstate Horseracing Act.10 The Act, which was passed in 1978, was meant to give the federal government the power to enforce off track betting agreements between states.  As the name of the Act suggests, the government has authority over horseracing because by its nature horseracing is interstate commerce.  Horses travel over state lines to race and money is bet in one state on horses racing in another.

The federal Constitution gives the federal government power to “regulate commerce . . . among the several states . . . .”11 There doesn’t seem to be any question that if the federal government wanted to it could create a national racing commission to regulate all racing jurisdictions within the US.12 Whether this is good, bad, necessary, or not, the states, New York included, have realized that maintaining the status quo could create a situation that none of the states wants to be in-federal control over racing within their borders.

State racing commissions have most likely resisted change because they feel that they know what’s best for their state and because of what is probably a general dislike for being told what to do by the federal government.13 Maybe more importantly, there is an additional element of expense for the new programs called for by the Safety and Integrity Alliance.  For example, the Alliance calls for developments in medication and testing, injury reporting and prevention, safety research, a safer racing environment, and aftercare for retired racehorses.  If the federal government were to force the states’ hand, it would be imposing large costs on them at the same time.

Pretty clearly the pressure and threat of federal involvement has achieved the exact result that the government set out accomplish-self-regulation by the states.  Although it is promising that states in general and New York specifically have enacted steroid rules, the sport of horseracing is not safe unless there is a general movement towards adoption of the Safety and Integrity Alliance plan.  The real problem is that the states can thumb their noses at the NTRA because there isn’t any threat of force.  State action, without compulsion would be ideal, but the inevitability of federal involvement looms large.

Daniel Katz & Eric Schillinger, editors.

________________________________________

1 New York State Racing and Wagering Board: History, http://www.racing.state.ny.us/about/about.home.htm (last visited Jan. 31, 2009); see New York State Racing and Wagering Board: Rule Making in New York: Proposed Rules, http://www.racing.state.ny.us/about/rls.home.htm (last visited Jan. 31, 2009) (explaining that in May of 2008 the Board approved of the rule, but that the Governor’s Office of Regulatory Reform had to review it prior to its formal adoption).

2 Eight Belles and Barbaro suffered fatal injuries during primetime television events, respectively the Kentucky Derby and Preakness Stakes.  The deaths of these horses has led to an outcry from the media about the safety and welfare of horses and the effects of performance enhancing drugs. See Joe Drape, Filly’s Death Casts Shadow Over Big Brown’s Derby Victory, N.Y. Times, May 4, 2008; Joe Drape, After 8 Months Filled by Hope, Setback Ends Barbaro’s Battle, N.Y. Times, Jan. 30, 2007, at A1.

3 N.Y. Comp. Codes R. & Regs. tit. 9, § 4043.15 (2009).

4 Doping is a generic term that I use to mean any performance enhancing drug, not simply steroids.

5 See Joe Drape, Report of Horse Deaths Creates More Questions, N.Y. Times, June 15, 2008, at 10.

6 See Jan Schakowsky, Vice Chair, Subcommittee on Commerce, Trade, and Consumer Protection, Opening Remarks at Breeding, Drugs, and Breakdowns: The State of Thoroughbred Horseracing and the Welfare of the Thoroughbred hearing (June 19, 2008).

7 The NTRA is “both league office for a big sport and trade association for a big industry, including related businesses like breeding” for horseracing, but lacks any formal enforcement powers and its model rules are only suggested for racing jurisdictions to adopt and follow.  Horse Racing Industry-NTRA, http://www.ntra.com/industry.aspx (last visited Jan. 31, 2009).

8 See Alexander M. Waldrop, President and Chief Executive Officer, National Thoroughbred Racing Association, Witness Testimony before the Subcommittee on Commerce, Trade, and Consumer Protection (June. 19, 2008).

9 Among the goals of the Safety and Integrity Alliance plan are: a continued move toward uniform medication rules; a ban of steroids from racing competition; out of competition testing for blood and gene doping agents; uniform penalties for all medication infractions; mandatory on-track and non-racing injury reporting; mandatory installation of protective inner safety rails; mandatory pre- and post-race security; and adoption of a placement program for retired thoroughbreds.  See Jeff Lowe, NTRA Unveils Plan for Sweeping Reforms, Thoroughbred Times, Oct. 15, 2008, available at http://www.thoroughbredtimes.com/national-news/2008/October/15/NTRA-safety-and-integrity-alliance.aspx; NTRA Safety and Integrity Initiative 4-7 (NTRA 2008).

10 15 U.S.C. §§3001-3007 (2000).

11 U.S. Const. art. I, § 8, cl. 3.

12 See Gonzales v. Raich, 545 U.S. 1, 17 (2005) (explaining that even in close cases where it can be difficult to establish interstate commerce, Congress can regulate states: “case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce”).

13 The New York State Racing Commission was established in 1895, but in 1973 was consolidated into the New York State Racing & Wagering Board.  Many commissions around the country have existed for several decades or more which is another reason that they resist federal involvement-they believe they have the experience and foresight to deal with problems as they see fit.  See New York State Racing and Wagering Board: History, http://www.racing.state.ny.us/about/about.home.htm (last visited Feb. 1, 2009).

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Filed under Constitutional Law, Federalism, Sports Law

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